Citation Nr: 0925351
Decision Date: 07/07/09 Archive Date: 07/21/09
DOCKET NO. 06-27 853 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
1. Propriety of the reduction of the rating for prostate
cancer from 100 percent, effective April 1, 2005.
2. Entitlement to a rating in excess of 40 percent for
residuals of prostate cancer, effective April 1, 2005.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARING ON APPEAL
Appellant & Spouse
ATTORNEY FOR THE BOARD
A. Ishizawar, Associate Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
August 1969 to March 1971. This matter is before the Board
of Veterans' Appeals (Board) on appeal from a January 2005
rating decision of the Chicago, Illinois Department of
Veterans Affairs (VA) Regional Office (RO). In March 2008, a
Travel Board hearing was held before the undersigned. A
transcript of the hearing is associated with the Veteran's
claims file. In May 2008, the case was remanded for
additional development.
On a VA Form 646 dated November 21, 2007, the Veteran's
representative raised the issue of entitlement to an
effective date prior to May 14, 2003, for the 100 percent
rating previously assigned for the Veteran's prostate cancer.
In May 2008, the Board referred this matter to the RO for
appropriate action. The record does not reflect that any
action has been taken; therefore, the matter is again
referred to the RO for any appropriate action.
FINDINGS OF FACT
1. A July 2003 rating decision granted the Veteran service
connection for prostate cancer, rated 100 percent under
Diagnostic Code (Code) 7528, effective May 14, 2003.
2. Following a VA examination in November 2003, by rating
decisions in June 2004 and November 2004, the RO proposed to
reduce the 100 percent rating for residuals of prostate
cancer; the Veteran was notified of these decisions in June
2004 and in December 2004, respectively.
3. A January 2005 rating decision implemented the reduction
in the rating for residuals of prostate cancer from 100
percent to 40 percent, effective April 1, 2005; at the time,
the record showed that the Veteran's prostate cancer was in
remission.
4. From April 1, 2005 through March 8, 2008, the Veteran's
residuals of prostate cancer were manifested predominantly by
voiding dysfunction requiring the wearing of absorbent
materials which had to be changed more than 4 times a day;
renal dysfunction was not shown.
5. From March 9, 2008, the Veteran's residuals of prostate
cancer have been manifested predominantly by voiding
dysfunction requiring the wearing of absorbent materials
which must be changed at least 2 times but no more than 4
times a day; renal dysfunction is not shown.
CONCLUSIONS OF LAW
1. The reduction of the rating for residuals of prostate
cancer from 100 percent effective April 1, 2005 was in
accordance with the facts and with governing law.
38 U.S.C.A. §§ 1155, 5107, 5112 (West 2002); 38 C.F.R.
§§ 3.102, 3.400, 4.115(a), 4.115(b), Diagnostic Code (Code)
7528 (2008).
2. The Veteran's residuals of prostate cancer warrant staged
ratings of 60 percent from April 1, 2005 through March 8,
2008, and 40 percent from March 9, 2008. 38 U.S.C.A.
§§ 1155, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.400,
4.115(a), 4.115(b), Code 7528 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A. Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, in part, describes VA's duties to notify and assist
claimants in substantiating a claim for VA benefits. See
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126;
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA
applies to the instant claim. Upon receipt of a complete or
substantially complete application for benefits, VA is
required to notify the claimant and his representative of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper VCAA notice must inform the claimant of
any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide.
38 C.F.R. § 3.159(b)(1) (including as amended effective May
30, 2008; 73 Fed. Reg. 23353 (April 30, 2008)). VCAA notice
should be provided to a claimant before the initial
unfavorable agency of original jurisdiction decision on a
claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).
Regarding the matter of rating residuals of prostate cancer,
a June 2008 letter (in accordance with Vazquez-Flores v.
Peake, 22 Vet. App. 37, 43-44 (2008)) notified the Veteran
that to substantiate an increased rating claim, he must
provide, or ask the Secretary to obtain, medical or lay
evidence demonstrating a worsening or increase in severity of
his disability and the effect that worsening has on his
employment and daily life. It explained that should an
increase in disability be found, a disability rating would be
determined by applying relevant Codes, which typically
provide for a range in severity of a particular disability
from noncompensable to as much as 100 percent, based on the
nature of the symptoms of the condition for which disability
compensation is being sought, their severity and duration,
and their impact upon employment and daily life. It also
provided examples of the types of medical and lay evidence
that the Veteran may submit (or ask the Secretary to obtain)
that are relevant to establishing entitlement to increased
compensation, e.g., competent lay statements describing
symptoms, medical and hospitalization records, medical
statements, employer statements, job application rejections,
and any other evidence showing an increase in the disability
or exceptional circumstances relating to the disability.
The Board notes that the June 2008 letter came after the
January 2005 rating decision which reduced the rating for the
Veteran's residuals of prostate cancer from 100 to 40
percent. However, the January 2005 rating decision was not
the initial adjudication in this matter. The Veteran's
initial claim was one of service connection for prostate
cancer, and when a July 2003 rating decision granted such
claim and assigned the initial disability ratings (and
effective dates), statutory notice was no longer required.
See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006),
aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).
The July 2003 rating decision advised the Veteran that the
100 percent rating assigned for his prostate cancer was "not
considered permanent" and would be "subject to a future
review examination." See Code 7528, Note (providing that
"[f]ollowing the cessation of [cancer treatment], the rating
of 100 percent shall continue with a mandatory VA examination
at the expiration of six months. Any change in evaluation
based upon that or any subsequent examination shall be
subject to the provisions of 38 C.F.R. § 3.105(e).")
The Veteran received appropriate notice with respect to the
reduction effective April 1, 2005. In compliance with
38 C.F.R. § 3.105(e), the Veteran was advised by rating
decisions in June 2004 and November 2004 that a reduction was
proposed and he had 60 days to respond/submit additional
evidence. The matter was readjudicated after all critical
notice (including the June 2008 Vazquez-Flores-compliant
letter) was issued, and development sought by the Board was
completed. See January 2009 Supplemental Statement of the
Case. The Veteran has had ample opportunity to respond to
all notices/supplement the record, and is not prejudiced by
any technical notice deficiency that may have occurred during
the process. Significantly, neither he nor his
representative has alleged that notice in this matter was
less than adequate. See Goodwin v. Peake, 22 Vet. App. 128
(2008).
The Veteran's pertinent treatment records have been secured.
The RO arranged for VA examinations in June 2003, (as
required) in November 2003, and in December 2008. The
Veteran has not identified any pertinent evidence that
remains outstanding. VA's duty to assist is met.
Accordingly, the Board will address the merits of the claim.
B. Factual Background
March 2003 private treatment records from St. Francis
Hospital show that the Veteran was given a diagnosis of
carcinoma of the prostate, and underwent a radical retropubic
prostatectomy and bilateral pelvic lymphadenectomy. In June
2003, the Veteran underwent cystoscopy after he complained of
difficulties in urination. Specifically, he had a large
post-void residual urine. The cystoscopy revealed that he
had bladder neck contracture and foreign body at bladder
neck.
On June 2003 VA examination, the Veteran complained of
dysuria, stating that he did not have a full flow and had
undergone cystoscopy two weeks prior for bladder neck
contracture and foreign body at bladder neck. He also stated
that he had experienced incontinence for two weeks following
his prostatectomy. Apart from his two surgeries, the Veteran
received no other treatment for his prostate cancer.
By a rating decision in July 2003, the RO granted service
connection for prostate cancer as due to exposure to
herbicides, and assigned a 100 percent rating under Code
7528, effective May 14, 2003 (the date of claim).
On November 2003 VA examination, the Veteran's prostate
cancer was found to be in remission with no adjuvant therapy
required. It was also noted that despite his June 2003
cystoscopy, he continued to have urinary stress incontinence,
and had leakage of urine with any significant Valsalva,
laughter, or bouncing. The Veteran had to wear a pad daily.
In accordance with 38 C.F.R. § 3.105(e), in a June 2004
rating decision, the RO proposed to reduce the rating for
residuals of prostate cancer to 20 percent based on
improvement. The Veteran was informed of the proposal by
letter in June 2004.
In an August 2004 letter, the Veteran's private treating
urologist, Dr. N.S.B., stated that the Veteran continued to
have stress urinary incontinence following his radical
prostatectomy.
Based upon Dr. N.S.B.'s August 2004 letter, and in accordance
with 38 C.F.R. § 3.105(e), in a November 2004 rating
decision, the RO proposed to reduce the rating for the
Veteran's residuals of prostate cancer to 40 percent based on
improvement. He was informed of the proposal by letter dated
in December 2004.
In a January 2005 rating decision, the RO implemented the
reduction to 40 percent for residuals of prostate cancer,
effective April 1, 2005. The Veteran was notified of the
rating reduction by letter, dated in February 2005.
At the March 2008 Travel Board hearing, the Veteran testified
that, during the course of the day, he used 6-8 pads (of
absorbent material) for bladder control and also got up 8-10
times a night to use the bathroom. The Veteran's spouse also
testified that he was up "at night, all night," due to his
bathroom urges.
On December 9, 2008 VA examination, the examiner reviewed the
Veteran's claims file and noted that since his prostatectomy
and cystoscopy, he has had urinary incontinence following
coughing, sneezing, laughing, or any other type of Valsalva
maneuver. The Veteran reported that he has urgency and needs
to void at intervals of between 30 to 45 minutes each day; he
had nocturia approximately 5-6 times. He reported that
formerly he had used over 4 absorbent-material pads, like
Depends or Pampers, but in the last 9 months or so that
number has reduced to 2 absorbent-materials diapers changed
twice a day. The Veteran explained that he achieved this
reduction by reducing his own amount of fluid intake. He
also stated that his urinary flow was good, and denied
hesitancy or dysuria. He also denied bladder stones or
kidney stones, and stated he had never been hospitalized for
a urinary tract infection. The Veteran reported that he was
a truck driver and explained that he was able to urinate
behind bushes or between trucks at the terminals when a
bathroom was not available. On physical examination, the
Veteran was not found to be lethargic, weak, or anorexic.
There were no testicular atrophy, renal disease, or
dialysis/treatment for a urinary disorder. Based on the
foregoing, the examiner opined that although the Veteran's
urinary frequency interrupted his job, he continued to work
as a truck driver and attempted to modify his behavior in
order to complete his job; therefore, it had no effect on his
usual occupation.
C. Legal Criteria and Analysis
The appeal involves two questions. First, it must be
determined whether the rating reduction of the Veteran's
prostate cancer from 100 percent to 40 percent for residuals
of prostate cancer was proper; then, if the reduction was
proper, whether the assignment of a 40 percent rating was
proper.
Rating Reduction
Under 38 U.S.C.A. § 4.11b, Code 7528, for prostate cancer, a
100 percent rating is assigned following the cessation of
surgery, chemotherapy, or other therapeutic procedure and
shall continue with a mandatory VA examination at the
expiration of 6 months. Any change in evaluation based upon
that or any subsequent examination shall be subject to the
provisions of 38 C.F.R. § 3.105(e). If there has been no
local reoccurrence or metastasis, then the cancer is rated
based on residuals of voiding dysfunction or renal
dysfunction, whichever is the predominant disability.
Pursuant to 38 C.F.R. § 3.105(e), where a reduction in the
evaluation of a service-connected disability is considered
warranted and the lower evaluation would result in a
reduction or discontinuance of compensation payments
currently being made, a rating proposing the reduction or
discontinuance will be prepared setting forth all material
facts and reasons. The beneficiary will be notified at his
latest address of record of the contemplated action and
furnished detailed reasons therefore, and will be given 60
days for the presentation of additional evidence to show that
compensation payment should be continued at their present
level. Final rating action will reduce or discontinue the
compensation effective the last day of the month in which a
60-day period from the date of notice to the beneficiary of
the final rating action expires.
On June 2003 VA examination, it was noted that apart from the
Veteran's March 2003 prostatectomy, he had not received any
other treatment for his prostate cancer. [Notably, the June
2006 cystoscopy was performed to treat his frequent
urination.] On November 2003 VA examination, the Veteran's
prostate cancer was found to be in remission with no other
adjuvant therapy required.
As the surgery was performed in March 2003 and a VA
examination was conducted in November 2003, more than 6
months after the surgery, and as there was no local
recurrence of cancer, the RO was required by the Rating
Schedule to rate the prostate cancer disability on residuals
as voiding dysfunction or renal dysfunction, whichever was
the predominant disability. 38 U.S.C.A. § 4.11b, Code 7528
(emphasis added).
As required by 38 U.S.C.A. § 4.11b, Code 7528, the RO
complied with the procedural requirements of 38 C.F.R.
§ 3.105(e) when it notified the Veteran of their proposals to
reduce his rating assigned for residuals of prostate cancer
in June 2004 and December 2004. He was also notified of his
right to challenge the proposed reductions, and was given an
opportunity to present evidence and/or have a hearing.
[Significantly, in response to the June 2004 rating
decision/reduction proposal, the Veteran submitted additional
information in August 2004.] The Veteran was then notified
of the final reduction, and the reduction was made effective
no sooner than permitted by regulation.
For these reasons, the Board finds that the rating reduction
was in accordance with the facts of the record and the
application of 38 C.F.R. § 3.105(e).
Rating Residuals of Prostate Cancer
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155.
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.
Under Code 7528, Note, following the cessation of surgical,
X-ray, antineoplastic chemotherapy or other therapeutic
procedure, if there has been no local reoccurrence or
metastasis, the disability is rated on residuals as voiding
dysfunction or renal dysfunction, whichever is predominant.
38 C.F.R. § 4.115b.
Initially, the Board notes that the Veteran's residuals of
prostate cancer have been rated based on residuals as voiding
dysfunction. As the record does not show that he has renal
dysfunction (see December 2008 VA examination report)(and he
has note alleged otherwise), discussion of a potentially
higher rating based on renal dysfunction is not necessary.
Under 38 C.F.R. § 4.115a, for voiding dysfunction, a 40
percent rating is warranted when there is continual urine
leakage, post surgical urinary diversion, urinary
incontinence, or stress incontinence requiring the wearing of
absorbent materials which must be changed 2 to 4 times per
day. The next higher (and maximum) rating of 60 percent is
warranted when there is urinary leakage requiring the use of
an appliance or the wearing of absorbent materials which must
be changed more than 4 times a day.
It is not expected that all cases will show all the findings
specified; however, findings sufficiently characteristic to
identify the disease and the disability therefrom and
coordination of rating with impairment of function will be
expected in all instances. 38 C.F.R. § 4.21. Where there is
a question as to which of two evaluations shall be applied,
the higher rating will be assigned if the disability picture
more nearly approximates the criteria for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7.
In a claim for an increased rating, "staged" ratings may be
warranted if the claim involves the initial rating assigned
with a grant of service connection. See Fenderson v. West,
12 Vet. App. 119 (1999).
From April 1, 2005 through March 8, 2008
A 40 percent rating has been assigned for this period of
time. However, evidence reflects that during this period of
time, the Veteran was noted to have stress urinary
incontinence and urinary leakage with any significant
Valsalva, laughter, or bouncing, thus requiring him to wear
pads of absorbent material. At the March 2008 Travel Board
hearing, the Veteran and his spouse testified that he
required 6-8 pads daily due to his urinary incontinence and
had to get up frequently at night to use the bathroom. Based
on their testimony, the Board remanded this matter for a VA
examination. See Chotta v. Peake, 22 Vet. App. 80 (2008)
(concluding that VA's duty to assist may include development
of medical evidence through a retrospective medical
evaluation where there is a lack of medical evidence for the
time period being rated); Colvin v. Derwinski, 1 Vet. App.
171, 175 (1991) (holding that the Board may consider only
independent medical evidence to support its findings and may
not rely on its own medical judgment).
On December 9, 2008 VA examination, the Veteran reported that
formerly he had used over 4 pads a day, but in the last 9
months that number has reduced to 2 pads a day. Resolving
all reasonable doubt in the Veteran's favor, the Board finds
that from April 1, 2005 to March 8, 2008 (9 months prior to
the December 9, 2008 VA examination), it was factually
ascertainable from the balance of the evidence that the
Veteran's residuals of prostate cancer were manifested by
voiding dysfunction requiring the wearing of absorbent
materials which had to be changed more than 4 times a day,
warranting a 60 percent rating. This is the maximum rating
available under voiding dysfunction; renal dysfunction was
not shown.
From March 9, 2008
On December 9, 2008, it was noted that the Veteran had
urinary incontinence following coughing, sneezing, laughing,
or any other type of Valsalva maneuver. He reported that he
had urgency and needed to void at intervals of between 30 to
45 minutes each day, and had 5-6 times nocturia. He also
reported that as of 9 months prior to the VA examination
(from March 9, 2008), he had been using 2 absorbent material
pads daily. The disability picture presented falls squarely
within the criteria for a 40 percent rating (stress
incontinence requiring the wearing of absorbent materials
which must be changed 2 to 4 times a day); clearly, the
criteria for the next higher (60 percent) schedular rating
were no longer met.
The Board has also considered whether referral for
extraschedular consideration is indicated. There is no
objective evidence, or allegation, suggesting that the
disability picture presented by the Veteran's residuals of
prostate cancer is exceptional or that schedular criteria are
inadequate (notably, on December 9, 2008 VA examination, it
was noted that although the Veteran's urinary frequency
interrupted his job as a truck driver, he continued to work
and had modified his behavior in order to complete his job;
therefore, his disability had no effect on his usual
occupation). The symptoms and impairment shown are fully
encompassed by the schedular criteria. See 38 C.F.R.
§ 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008).
Consequently, referral for extraschedular consideration is
not warranted.
ORDER
The appeal challenging the reduction of the Veteran's rating
for prostate cancer from 100 percent effective April 1, 2005
is denied.
A 60 percent rating is granted for the Veteran's residuals of
prostate cancer for the period from April 1, 2005 to March 9,
2008, subject to the regulations governing payment of
monetary awards); from March 9, 2008 a rating in excess of 40
percent is denied.
____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs